tv [untitled] CSPAN June 28, 2009 12:00am-12:30am EDT
case discussions. dick asked me to start with a case that has not come down yet. the new haven firefighter case -- i will be brief on this. it has not come down. it is an occasion to make a couple of remarks, because this case has been turned into sort of a one-dimensional cartoon. it is reverse discrimination, hapless victims, this and that. what this will tell us about, the judge sotomayor, per jurisprudence, and that kind of thing. it is a complex case of -- there is a lot of new ones in this case, actually. it goes to the relationship between title 7, equal protection for -- the fourteenth amendment, you all know the facts about it, right? there is the new haven fire
fighters, and why some hispanic firefighters got a score at a much greater rate that made them eligible. were eligible than there were slots available for promotion, so nobody in that group could actually claim i would have been promoted, but they all would have been eligible for promotion. the racially disparity results failed what's known as the 4/5 rule. this is a regulation put out by the equal employment opportunity commission that, if opportunity commission that, if racially disparate outcome in some employment practice or outcome so that one group passes or qualifies at a rate 80% less than the other group, that's a frimefishe
disparate impact that requires explanation. it shifts the burden to the employer to explain the job-relatedns of this requirement or the lack or availablity of some other alternative that would have produced a less disparate result. so that was the case in new haven and new haven's corporation counsel advised the city that they were at risk under this outcome of being sued under title 7's disparate impact and so she canceled the results of the exam and got a lawsuit by the firefighters who scored well on the exam claiming that this was an instance of intentional discrimination. of course, there's two prongs of title 7 and they have the 14th amendment working in the background.
if the court is going to get its hands around this, that's a big deal because there is some tension in the way developed. and so the question jures prudential or in terms of judicial behavior is whether the court will seek to what the justice department strongly urges it to do, which is to find some way to reconcile and eliminate this tension and not have the two prongs of title 7 be at war with one another. it will be very interesting to see whether they can do that. if you look at the april arguments, this case was argued in the courts last argument sitting, in which 10 cases were argued in april and there were two cases that remain undecided. this case and a banking
regulation preemption case called cuomo against clearinghouse and justice kennedy has not written yet. kennedy is extremely skeptical of government counting by race, but on the other hand he and the chief justice, as you recall, parted company two years ago in an extremely important case called parents involved, that was the seattle and louisville schools case where the chief justice wrote for a plurality in which he said that the racially conscious efforts that the louisville and seattle school boards had taken to prevent resegregation of their public schools were not supported by a excelling state interest, that
the city of louisville, kentucky, had no excelling -- compelling state interest in maintaining integration. interesting point. and justice kennedy said i can't sign that. it's more complicated than that. of course they have a compelling state interest in maintaining segregation kevin their history. however, i think that steps they've taken here aren't sufficiently narrowly tailored to serve that interest and so i agree on the bottom line these plans are unconstitutional but i don't sign the plurality opinion. so there's a fair amount of daylight there and it will be very interesting to see what happens. which brings me to a case they have decided, in fact, the court decided it this week, the section 5 voting rights act case. a very interesting exercise in avoiding the big issue. some people say, well, they avouted the big issue because they're gk to -- going to tacking the -- tackle the big
issue in the firefighter case. maybe. i have no idea. some people say they avoided the big issue in the voting rights case because they were in a mood for avoiding big issues. we will soon see. in this case, caulted northwest austin municipal utility district number one against holder, which is in your materials, as you know, this was a challenge to the continued constitution at of the preclearance provisions of section 5 voting rights act reviewed in 2006 by congress and the big erb lurking there -- the big issue lurking there, there is a doctrinal issue lurking here which is how do you evaluate the claim that section 5 has run its course, it's become outdated, there is no longer a need for the kind of intrusion that section 5
imposes on the restrictses by requiring justice? do you evaluate it, as the appellants argued, whereby congress' enforcement powers under section 5 of the 14th amendment are limited to finding remedies that are congruent and proportional to demonstrated violations or do you continue the very defferential standard that the court has always used in evaluating challenges to the voting rights act under south carolina versus cast enback which involves congress giving direct authority under section 5, the court is going to back off from second guessing congressional judgments. that's a really, really big issue because the court has danced around with this and has
walked right up to the line with the city of burny line of cases applying that judicial supremacy to a variety of claims but not to claims involving race, claims involving suspect categories and strict scrutiny. so that was what was teed up in this voting rights case and the court blinked and didn't reach that issue. the chief justice wrote and opinion for eight justices in which he said the continued viability of the voting rights act presents important and serious constitutional challenges and squonl we invoke the doctrine of constitutional avoidance and we're going to hold that this district that wants to get out from under the voting rights act through the bailout provision, which on its face, as a textualist, does not apply to this district because it applies in the language of the statute only to those
dricts -- those jurisdictions that actually register voters and this particular district does not. it is part of travis county, texas, which came in on the side of those defending the voting rights act. but the court said because of the doctrine of constitution 58 avoidence, we're going to find the district is eligible to apply for a bailout and so we send the case back on that and let them apply and see what happens. so of course it is very intriguing and when dick mentioned the court is now more transparent, on a certain level i guess it is, but one would really like to know what happened in the court -- >> remember, the oral argument of this case, kennedy was especially active. he asked 17 questions. most of which were fairly hostile. >> and the chief justice, too. >> and one detected a certain skepticism as to whether
congress had gone through the motions or taken a hard look at the changes. as the chief justice says, things have changed. in light of that oral argument, were you surprised to see the case come out this way? and is it a case that we might consider as an evidence of the chief justice's ability to pull everybody together on a narrow ground rather than have the court fragmented on the constitutional question? >> one can argue that. one can also observe that maybe he couldn't get five votes to do what he wanted to do in this case. >> maybe. >> there's all kinds of theories floating around. there is one interesting theory that the court, seeing an national train wreck of the sort -- i mean, obviously of a lesser dimension, but i thought the chief's comments about chief justice tijuanay in dred scott were very interesting in terms of the court having the
general zeitgeist and here we have an election that might indicate to some people that the court as presently constituted is perhaps a little to the right of the country's center of gravity and is this going to be the court that declares one of the iconic achievements of the civil rights revolution to be unconstitutional? chris raises the question why they took the case? it came up and the mandatory -- the bush administration said affirm off the jurisdictional statement, which would have avoted a whole bunch of running around the merry-go-round here. so one theory is that the court , having -- in an exercise of activism, taken this case for plenary review, behaved as they did on the bench, gotten a whole lot of pushback from the country at large for what looked like an inevitable
outcome from that argument, pulled back collectively, and that the opinion that has the ief justice's name on it was actually a collective product by -- across the spectrum of the court saying we're not going to drive ourselves into that ditch. you know, the more i think about it, i think there's something to that. if you really parse out the opinion with great care, it doesn't actually read like an opinion by john roberts. for one thing -- i'm glad he's not here. i can say these things. [laughter] >> for one thing, it cites law review articles and i think i'm right, if somebody in the audience or somebody on c-span or whoever is covering this can give me evidence to the contrary, i could have asked him -- i don't believe he's ever cited any law review articles since he's been on the court except for those by judge henry flenled for whom he clerked.
he doesn't believe in it. you asked about extra legal material, but it's pretty common to cite law review articles. maybe now because i'm teefing in a law school i'm sensitive to this. but this does cite a number of law review articles to tell us what the current status of voting right acts enforcement. so there is something else going on here. also, the clarence thomas dissenting opinion, which says, you know, things have changed in the voting rights act has outlived its need, which is a clear victory, it's no longer a recommended for intentional discrimination because there's no more intentional discrimination in the voting area, he says. but it's got a very mild tone to it. it's not an angry dissenting opinion. so there is another theory floating around that maybe it had started as a majority opinion or a putative majority opinion by somebody or pieces of it by some group of people and that that was then pulled back and it was left with
justice's thomas' name on it as a dissent because it doesn't read like a clarence thomas dissent. you look like you want to jump in. >> i think, just having listened to the chief justice and trying to explain what he meant by deciding cases on more narrow ground, looking for greater consensus, i think that this case is one that you can easily read as a perfect example, whether by intention or just by results, of what the chief justice was talking about doing. it's quite extraordinary on this incredibly devicive and significant itch that we had eight justices speaking with eight justices speaking with one voice, including the more liberal justices who were willing to sign an opinion saying the voting rights act series -- raises serious constitutional concern. granted, it is a step back from
taking that step, as some had urged the court to do. it is a pretty extraordinary product when you look at this decision and think about how this court has spoken. you can contrasted to the case that linda mentioned from a few terms ago in the school segregation cases when the justices really kind of had a mess of a series of opinions with justice kennedy stepping in with this concurring opinion, refusing to give the chief justice's vote. his concurring opinion in that case was not -- once you got behind is words, it was not all that different than what roberts was saying in the majority. we had a case there where that decision really was decided by anthony kennedy. when john roberts talks about consensus and unanimity, one way
of speaking about that is minimizing the influence of anthony kennedy. ests. as linda pointed out, liberals, really, on the court, again, using judicial liberals have no more interest in arguing over justice kennedy like the the human jump ball than the conservatives do because they're going to lose. i mean, already he's been with them five times, he's been with conservatives 11. he doesn't always make the conservatives happy but he's going to go with the conservatives more often than not. so if you're the chief justice, you could say let's decide a case more narrowly. let's decide a discrimination case more narrowly. that's a way that we can speak with one voice without letting justice kennedy decide all these big issues, without us fighting over the vote of anthony kennedy.
and they may well be doing that, of course, in ricci. but i think this case, it was a pretty remarkable opinion for a chief justice to have written and who joined this court with a goal of trying to find a more unified voice. >> do you think this section 5 question will be back, that they're just picking it down the pike and they'll have to revisit it or will want to? >> well, i think, you know, this is a conservative movement issue. it's not just an issue that happened to drop out of the blue. so there are people with a real vested interest in undoing section 5 and there are jurisdictions that will seek to bail out under this bigger bailout provision and they will fail to get a bailout and that will give them standing to come back in and -- because it's hard to bail out even under the expanded jurisdiction.
>> there may be a movement issue. but it's interesting how overwhelming the vote in congress for renewing the act was. i think for 25 years, in the old days, it was five years at a time. i think the senate there were no dissenters, as i recall, and only a handful of representatives. so apparently the public -- >> that's the vote when it's unconstitutional. it's always unanimous in the senate. >> i mean, the opinion, you know, a number of people have interpreted the opinion as saying to congress ok now the ball is in your court and amend the section 5 extension, either limit the cover jurisdictions or revise them or make them somehow congruent with issues on the ground today, limit them to where there are demonstrated problems, and that is a complete can of worms. of course, one of the arguments is the reason there are fewer
demonstrated problems now with minority access to the vote is that section 5 has sat there as a prophylaxis, as a deterrent. in the city of burnie view, justice thomas articulates this , prophylaxis a outside congress' authority. congress only has authority to recommended, not to deter. so it's a fascinating issue and i don't think congress is institutionally capable of satisfying the supreme court, no matter what the supreme court court and no matter what congress does, i think the issue will come back and be joined either by this court or by the roberts court as it evolves over time. >> linda, thank you. let's move now to another area of the court's doctrine. this is an area which has been
very prominent in the present term and that is the question whether state toward lawsuits are preempted -- tort lawsuits are preempted by the action of federal administrative agencies. that's surfaced in two very important cases this term. ted olsen, would you like to take us into that? >> i'd love tofment i know preemption is very much on your mind out there. >> it's a saturday more than issue. >> i'd like to say a word or two about the civil rights cases, but very briefly. >> ok. >> john roberts, chief justice roberts, in the earlier voting rights case, i think it was his first term, said something, it's a sordid business, this divvying us up by race. then in the louisville and seattle cases, he said the way to end discrimination on the base bases of rate is to stop discriminating on the bases of race. so he feels pretty strongly about that and he's got some
colleagues on the court that feel pretty strongly about it, too. i have a feeling about the narrowness of the northwest austin decision, it was one of those april arguments where there isn't very much time to get everything done, they've got to be done by the end of june, the strip search case, which i guess we're going to come to later was also a late april argument, and the oral argument, the tenor of the oral argument was a whole lot different than what the decision came out. you look at those two cases that look like they were compromises because it might have been hard to achieve a five-vote majority and write a powerful opinion sweeping broadly, and so the court found a narrow ground in each case and the strip search case, which we'll get to, the conduct was unconstitutional but the school district wasn't -- the individuals weren't going to be liable for it. so everybody won. so that could have been part of it. one of the things in the oral argument that bothered justice
kennedy and the chief justice and i think some other parts of it is that that section of the voting rights act treats different parts of the country differently. i mean -- and i bothered, at least in the questioning, some of the justices, do you mean to tell me that certain parts of texas are -- behaved differently these many years later and is there any evidence of that, notwithstanding the vote in congress. i think it bothered some of the justices and i do think it will come back about having different standards for different parts of the country, which may have been more -- based more in fact some years ago than now. the other thing that's going to come back that we'll see perhaps in the ricci case and these areas that did come out in the school cases a couple years ago is the debate between the justices with respect to the level of scrutiny. strict scrutiny versus some reduced level of scrutiny in race cases where the motive may
be said to be good discrimination, like, for example, in the school cases, the effort to continue to have integrated schools as opposed to selecting people on the basis of race because of bad motives. so the different level of scrutiny may come up in this ricci case that we'll see on monday. so that's something to watch because that's sort of an underlying, overarcing theme with respect to the racial discrimination cases. i was also going to say something about you asked about a conservative court. linda mentioned this. the number of dissenting votes. it's true with respect to the number of dissenting opinions, too. the four liberal members wrote dissenting opinions 50 times and the five so-called conservative justices wrote dissenting opinions less than half of that, 23 times. so there's something that's
reflective of how conservative it is. people can argue about particular cases. but certainly in terms of the outcome, there is quite a dispairate allocation there. now, preemption that you've been waiting for so much. the court had three preemption cases and this really is important because it has to do with the allocation of government power between the federal government and congress and the agencies of the federal government and the states. the three cases were altry vrted goode and cuomo versus clearinghouse, which is one of the three cases coming down on monday. so we don't know much about that. altria versus goode was the degree to which the sig rate language preempted state laws that would provide the opportunity to sue tobacco companies for misleading
labeling or advertising. the statute said in order to have a uniform national policy with respect to the advertising or promotion of cigarette products, prohibitions or requirements by states on the advertising and promotion of cigarettes based upon smoking and health will be out, you know, they will be precluded. the altria versus goode case came up, someone is suing because they argued that the advertising of like cigarettes was misleading. people according to the allegation smoked the the cigarettes in such a way that they actually got potentially more tar and nicotine than the regular cigarettes so that the idea of advertising them as light was misleading bfment the tobacco companies said those suits are barred and the supreme court in a 5-4 decision written by justice stevens said no, they're not. that prohibition, the explicit
preemption pro hi bigs goes to prohibitions based upon smoking and heather and what the lawsuit was based upon was the unfair practices act of the state of maine, i guess it was, that prohibited deceptive advertising. so justice stevens reasoned that that wasn't based upon smoking and health, that was just a prohibition of deceptive tiesing. i'm going to mention in a minute how much this has changed. we're on a teeter-totter with respect to when things will be preempted. i'll mention the wyeth case. the first was an compress preemming case which, because the congress had a specific statute covering preemption. the wyeth case had to do with the marketing a pharmaceuticals and the pharmaceutical company there was being sued for failure adequately to warn with respect to the pharmaceutical product and the alleged failure to warn allowed a medical
practitioner to administer the drug in a way in which it caused very, very serious injuries. and the pharmaceutical company id the process by which the labeling of pharmaceutical products and warnings is all arranged according to a process through the food and drug administration and we had to label -- the labeling was approved and it had to be labeled that way and if you start having every different state through tort cases decide what the labeling should be, that undermines the uniformity of the expert judgment of the food and drug administration. in another decision by justice stevens, this one was 6-3, the court held that there was not an implied preemption because of the labeling requirements of the food and drug administration. justice thomas added a concurring opinion saying i just don't believe in this implied preemption at all.
if we're going to hold that the federal government can do something to prevent states from regulating something, congress is going to have to be specific about it. we're just not going to assume that the states don't have power to do this sort of thing. the issues that these cases bring up that go first with respect to what are the words used by congress to cause the preemption? the court goes into great lengths distinguishing between preemption because of the claim is based upon a certain type of conduct or whether it relates to a certain type of conduct and whether that choice of language by congress -- and there's very little debate ever about which actual words are going to be used, how much difference it will make, and then whether or not there will be a preemption based upon a broad, general prohibition like an unfair practices act or whether it has to be specific.
so the court is going back and forth about that. i'll just make this one final -- two final points. if you really want to figure out what's going on with respect to preemption, and it goes back and fourth and up and you down like this, all you have to do is track the opinions of justice stevens. it's really quite amazing and quite brilliant. the earlier cigarette labeling case because cad chipalone. justice stephens wrote the concurring opinion. then the court went to a phase where they were looking at preemption in the context of the airline deregulation act and there were two rather strong upholding preemption in the airline industry, both of which justice stevens dissented. then the court came along with then the court came along with a medical device case where